Taylor Dolven v. Massachusetts Bay Transportation Authority (SPR 20231697)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2023 SPR23/1697 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Taylor Dolven, of the Boston Globe, appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 21, 2023, Ms. Dolven requested: [1] Spreadsheets reflecting the results of the three most recent geometry car tests on the Red, Orange, Blue, Green Lines and Mattapan Trolley Line[;] [2] Work orders for all speed restrictable track defects as of March 8, 2023[;] [3] Work orders for all speed restrictable track defects as of March 21, 2023[.] On June 8, 2023, the MBTA responded. Unsatisfied with the response, Ms. Dolven petitioned this office and this appeal, SPR23/1697, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Julie Ciollo, Esq. SPR23/1697 Page 2 August 7, 2023 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The MBTA’s June 8th Response In its June 8, 2023 response, the MBTA states: Please be advised that your request for spreadsheets reflecting the results of the three most recent geometry car tests on the Red, Orange, Blue, Green Lines, and Mattapan Trolley Line seeks information that is exempt from disclosure under Massachusetts General Laws ch. 4, sec. 7, clause 26 (n), which is known as the Security Sensitive Exemption….In this instance, the results of the geometry car tests would give someone intent on illegal activities the ability to alter MBTA systems in order to manipulate the travel of MBTA vehicles. In order to prevent this dangerous circumstance, we cannot publicly release the geometry car test results. Your request for work orders for all speed restrictable track defects as of March 8, 2023 and March 21, 2023, seeks information that is exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(f), which exempts certain investigatory materials…. According to information available to this office, the requested work orders are being used by investigatory officials as part of an open and active investigation. It is the MBTA’s position that disclosing the requested record prior to the investigation’s conclusion is likely to harm the ongoing investigation efforts by the MBTA and/or other investigative entities. In particular, disclosing the work orders at this time is likely to hinder investigative efforts by revealing facts known only to the investigators, or lead to interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation. Therefore, the MBTA is claiming Exemption (f) to withhold the work orders because disclosure would prejudice the possibility of an effective and fair investigation that such disclosure would not be in the public interest. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials

Julie Ciollo, Esq. SPR23/1697 Page 3 August 7, 2023 would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Based on the MBTA’s response, the MBTA has not demonstrated that the work orders constitute investigatory materials nor how disclosure of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). It is additionally uncertain how segregable portions cannot be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to

Julie Ciollo, Esq. SPR23/1697 Page 4 August 7, 2023 maximize damage.’” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “these two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian's burden in demonstrating ‘reasonable judgment’ and vice versa.” Id. at 290. Based on the MBTA’s response, I find it has not met its burden to withhold the responsive records pursuant to Exemption (n). Although the MBTA explains that “the results of the geometry car tests would give someone intent on illegal activities the ability to alter MBTA systems in order to manipulate the travel of MBTA vehicles[,]” it is unclear here how the particular information contained in the responsive record resembles the records listed in the statute. See id. at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Conclusion Accordingly, the MBTA is ordered to provide Ms. Dolven with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Taylor Dolven